Robert E. Stanton’s three adult children claim that a Slidell hospital was grossly negligent in their father’s COVID-related death in April 2020, failing to give him an I.V. or put him on a ventilator.
A St. Tammany Parish man claims the staff at a New Orleans mental health facility were negligent, allowing him to be viciously attacked and sexually assaulted by another patient.
But attorneys in both cases argue they cannot hold the health care providers legally accountable for their alleged negligence because Louisiana’s emergency laws, which were activated during COVID, are too broad. And they are suing, arguing the law is unconstitutional.
When Gov. John Bel Edwards declared a public health emergency in March 2020, he triggered a statute that says health care providers aren’t liable for deaths or injuries except in cases of “gross negligence or willful misconduct.” That applies broadly, covering everyone from ER doctors to podiatrists and optometrists to psychiatrists.
The governor’s order lasted until March 16, when Edwards let it expire. That means medical malpractice laws basically vanished for two years, the lawsuit claims.
“This immunity statute is written in such a broad manner that a ‘health care provider,’ as ambiguously defined … has no civil liability for literally anything while the statute is triggered,” the lawsuit states.
Last month, a Baton Rouge state judge allowed the lawsuit to move forward. The state has appealed that decision; a hearing on the statute’s legality is scheduled for April 8.
An ‘impossible burden’
Tony Le Mon, who represents the St. Tammany man, said he believes the emergency immunity statute was meant to protect health care providers on the front lines fighting COVID-19 and its variants.
“We do not dispute that some level of civil immunity should be given to them,” he said. “However, we believe that this immunity statute is far too over-broad and violates the due process, equal protection and infringement of contract provisions found in the United States Constitution and the Louisiana Constitution of 1974.”
For instance, Le Mon said, the statute grants civil immunity for medical malpractice claims for all health care providers in Louisiana, both licensed and unlicensed. And it applies to any kind of medical care, regardless of whether that treatment relates to COVID-19 and its variants.
Le Mon said the statute has “had a chilling effect of dissuading everyone who has been a victim of malpractice from pursuing a formal claim because that statute prohibits any such filing unless a patient can reach the almost impossible burden of showing an intentional malpractice or gross negligence malpractice.”
The state Attorney General’s Office contends the immunity statute is constitutional.
“Assuring that private health providers furnish medical care to the citizens of the state during a state of public health emergency is a legitimate state purpose,” Assistant Attorneys General Madeline Carbonette and David Jeddie Smith argue in documents filed in the case. “The resources available to health providers during a public health emergency are different than during times of when there is not a public health emergency.”
An issue of the law
Edwards issued a statement on March 4, saying, “If this immunity is abused and asserted in situations where the quality of care was not affected by staff shortages or overburdened health care facilities, that should not be acceptable and the Legislature should amend the law to prevent this from happening.”
Le Mon acknowledged that the governor has been in a “tough and patently unfair spot this entire two year period.”
He said he understands why Edwards would want to, for example, grant immunity to health care providers who were trying new and different COVID treatments in an attempt to save lives.
“Gov. Edwards was given the choice to either declare a public health emergency and grant civil immunity to each and every health care provider in Louisiana, or not declare a public health emergency and give not a single health care provider this civil immunity, including those battling COVID-19 and its variants,” Le Mon said.
Only the Legislature can rewrite the immunity law, Le Mon said.
Le Mon and lawyer Mary Grace Knapp, who represents Stanton’s family, are asking state District Judge Tarvald Smith to declare the immunity statute unconstitutional retroactive to its enactment, which predates the pandemic.
“Upholding the statute would be completely indifferent to the citizens’ rights, and would result in shifting the liability from the negligent hospital or health care provider who received payment for deficient services, to the unknowing innocent citizen in countless cases, depriving them of legal protection or compensation,” Knapp said.
If the immunity statute is not struck down or legislatively narrowed, Le Mon said, the state’s health care providers during declared health care emergencies “will continue to enjoy virtually no accountability to patients for substandard care in Louisiana.”
The St. Tammany man Le Mon represents was attacked and sexually assaulted in a male communal bathroom while unsupervised, the lawsuit says. The man claims the facility failed to maintain a safe environment and to protect him as a patient from other involuntarily hospitalized patients.
“It was personally heartbreaking to explain to (him) that he had for all practical purposes no civil claim against the hospital some 20 months post COVID-19 because there was an immunity statute in place that gave almost blanket immunity to the hospital for any negligent acts or omissions that resulted in the brutal attack upon him, except for the almost impossible legal burden to show gross negligence,” Le Mon said.
In the case of Stanton, the lawsuit alleges, among other things, that the hospital failed to provide an I.V. and hydrate him; failed to put him on an oxygen ventilator as indicated; ignored or devalued him as a patient; and unreasonably labeled him as having dementia, leading to a decline in his care.
He was admitted to the Slidell hospital with COVID-19 on April 8, 2020, and died nine days later.
The pandemic has killed more than 16,800 people statewide.